Gerges, Mtianos Abboud v Minister for Immigration and Multicultural Affairs

[1998] FCA 1511

FEDERAL COURT OF AUSTRALIA

MIGRATION - appeal from Refugee Review Tribunal (“RRT”) decision refusing refugee status – whether RRT had misunderstood applicant’s evidence because of inadequate translation by interpreter – whether applicant given opportunity to respond to independent Country Information relied on by RRT

Migration Act 1958 (Cth), ss 476(1)(e), 476(g), 476(2), 476(4)

MTIANOS ABBOUD GERGES v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 644 OF 1998

O’CONNOR J
SYDNEY
27 NOVEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 644  of   1998

BETWEEN:	MTANIOS ABBOUD GERGES APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		O'CONNOR J
DATE OF ORDER:		27 NOVEMBER 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

The application be dismissed with costs.

NOTE:SETTLEMENT AND ENTRY OF ORDERS IS DEALT WITH IN ORDER 36 OF THE FEDERAL COURT RULES.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 644 of 1998

BETWEEN:	MTANIOS ABBOUD GERGES APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	O'CONNOR J
DATE:	27 NOVEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an application for the review of a decision of a member of the Refugee Review Tribunal (“the Tribunal”) dated 3 June 1998 affirming the decision of the delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa.

The grounds of the application as summarised are:

• That the Tribunal erred in law in incorrectly interpreting the applicable law or incorrectly applying the law to the facts as found, in that the Tribunal failed to give proper consideration to the merits of the case pursuant to s 476(1)(e) (of the Migration Act 1958 (Cth) (“the Act”); and

• That there was no evidence or material to justify the making of the decision pursuant to s 476(1)(g) of the Act.

The applicant listed the particulars of the grounds of application as follows:

1. The Tribunal failed to accept that the applicant’s association with the Lebanese Forces is not widely known and that he is an official member of the Lebanese Forces Intelligence Section.

1. The Tribunal failed to recognise and fully comprehend the fear of persecution for Convention reasons should the applicant be compelled to return to Lebanon.

1. The Tribunal failed to accept that the applicant would be targetted and harassed by the Syrian and Lebanese authorities.  Although the scale of the arrests has diminished since 1995 the applicant will be tortured and arrested should he become known to the authorities who are interested in prominent members of the Lebanese Forces.

LEGISLATIVE CONTEXT

The relevant provisions of the Act in respect of this application are as follows:

“Application for review

476.  (1)  Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

…

(e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

…

(g)that there was no evidence or other material to justify the making of the decision.

(2)  The following are not grounds upon which an application may be made under subsection (1):

(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)that the decision involved an exercise of power that is so unreasonable that no reasonable person could have so exercised the power.

…

(4)  The ground specified in paragraph (1)(g) is not to be taken to have been made out  unless:

(a)the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

(b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”

A criterion for the grant of a protection visa is that Australia has protection obligations in relation to the applicant because he is a refugee in accordance with Article 1A(2) of the Convention, as amended by the Protocol, that is, he is a person who:

“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

The applicant seeks an order that the decision under review be set aside and remitted back to the Refugee Review Tribunal for reconsideration according to law.

FACTUAL BACKGROUND

The applicant is a national of Lebanon who arrived in Australia on 28 October 1996.

The applicant is in his mid forties and married.  He comes from Karm el Mohr in North Lebanon and his family still own property there and spend time there.  Although the applicant has described himself as a farmer, builder and form worker, it is clear that he is a developer and has been involved in a number of building projects mainly in the Christian dominated areas of Beirut and Jounieh.

The applicant joined the Kataeb in 1976 and later joined the Lebanese Forces (“LF”) in 1982.  The applicant claims that between 1982 and 1991 he was a member of LF’s intelligence section.  The applicant held no rank, did not live in barracks and received no pay and his evidence showed that as a wealthy Christian he provided financial support to the organisation.  The applicant claimed his intelligence work involved making monthly or two-monthly trips to the north where he would engage in conversation with anti-LF groups, and find out about actions planned against the LF.  He also gathered information about the activities of persons involved in other factions of the LF.

The applicant said that his membership of the LF was a secret because had it been known that he was a member of the LF it would not have been safe for him or his family to return to their village in the north.  The applicant claims that he was arrested in 1983 or 1984 by people whom he thought may have been members of the el Marada militia.  While he was accused of supporting the LF this could not be proved for sure.

At the end of the civil war and the disarming of the LF militia in 1991 the applicant continued to be involved in LF’s intelligence work.  Apart from being involved in one particular military action between the LF and the Lebanese Armed Forces of General Aoun in 1990, the applicant was not involved in any other activities on behalf of the LF, although he claimed to have had personal associations with a number of prominent LF members.

In 1995 and September 1996 the applicant claimed that the Lebanese authorities came to his home and asked for him, but he was not there on either occasion.  Apart from this he was not questioned or directly harassed by authorities.

The applicant claims that since the 1994 banning LF members and supporters who remain in Lebanon are confined to their villages;  if they go to Beirut seeking entitlements from government departments they are told to go away.  He says the government has been encouraging them to leave the country.

The applicant decided to leave Lebanon because LF members had started collecting information that they were to be arrested and tortured and it was only a matter of time before the authorities would come for him.  After the visit to his home by security forces in September 1996 the applicant decided to leave Lebanon.

The applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa on 24 January 1997.  The delegate’s decision refusing the application was made on 26 April 1997.  The applicant applied for a review of that decision by the Tribunal on 26 June 1997.  The application for review was rejected by the Tribunal and his application for protection visa refused on 3 June 1998.

TRIBUNAL’S DECISION

The Tribunal made the following findings.

• Although the Tribunal considered that the applicant’s evidence contained a number of exaggerations it accepted that the applicant was a credible and truthful witness and accepted most aspects of the applicant’s account of his circumstances in Lebanon.

• The Tribunal found that the applicant had certainly been a supporter of the LF and was closely associated with the LF over a long period of time.  The Tribunal concluded that this involvement with the LF was secret and largely remains so.

• The Tribunal found that the applicant was of no particular interest to the Lebanese or Syrian authorities at any time prior to his departure from Lebanon in October 1996.  Even if the authorities were seeking the applicant in 1996 the evidence showed that they were not seriously interested in locating him then or at any earlier period.  Had he really been of interest of the Lebanese and Syrian authorities he would not have been able to evade them so easily.

• Whether the applicant served in the intelligence section of the LF or not, as queried by the Tribunal, it was satisfied that the authorities had no suspicion of any connection with this section, in light of their lack of interest in the applicant during the period when members of the LF’s intelligence unit were prime targets for arrest.

• The Tribunal found there was no credible evidence before it to suggest that the applicant was anything but a low level member (of the LF), and there was no credible evidence to suggest that he was involved in any activities with the LF, such as involvement in serious crimes.

• The Tribunal did not accept the view of the applicant’s former role within the LF and found that he would not be of interest to the authorities if he now returned to Lebanon.

The Tribunal member concluded as follows:

“I am satisfied that the Applicant was not, prior to his departure from Lebanon, of any interest to the Lebanese or Syrian authorities as a result of his involvement with the LF during or after the civil war.  The independent evidence as to the current treatment of former LF members does not support the conclusion that the Applicant would face a real chance of persecution if he returned to Lebanon now or in the forseeable future.”

The Tribunal considered the applicant’s fear of persecution in Lebanon not well founded and that he was therefore not a person to whom Australia had protection obligations under the Convention.

At the hearing of this matter, Ms Georges, a relative of the applicant made submissions on his behalf.  She sought to tender an affidavit annexing a transcript of the proceedings before the Tribunal prepared by herself.  The respondent tendered the official transcript.  Both were admitted, subject to submission as to their relevance.

The applicant put the following submissions –

(a)       The Tribunal had “misunderstood” the applicant’s evidence because of inadequate translation by the interpreter.

(b)       The applicant was not given copies of the independent Country Information relied on in the decision in advance of the hearing so that he could prepare his response properly.

The respondent submitted that the particulars given in the application do not raise any ground of review under s 476 of the Act, merely reciting an alternative version of a number of the facts on which the decision was based. The difficulty alleged with the interpreter was not a procedural matter. In fact the transcript shows the Tribunal member invited the applicant to raise any such difficulty, if it should occur, during the hearing. This was not done, although the applicant was accompanied by Ms Georges at the Tribunal and she understands Arabic and speaks fluent English. The Tribunal member was aware, and said so in the decision, of language and cultural difficulties and said these were taken into account. She accepted the evidence of the applicant with few reservations.

As to the independent Country Information, the respondent submitted this was canvassed at length in the hearing and the applicant was given an opportunity to respond.  His responses were given attention and weight in the reasons for decision.  As an expert tribunal, the Refugee Review Tribunal is entitled to use material known to it to evaluate claims.  The views of the applicant on this material were sought and evaluated.  Also, none of the translation “discrepancies” referred to at the hearing were of great significance.  Certainly they were not relied on specifically in the decision.  They are, as the respondent submitted merely examples of difference of expression.

This Court has no jurisdiction to engage in review of the merits of any claim for refugee status.  No error of law or other ground of review his made out by the applicant.  The  Tribunal’s procedures were adequate and the findings made were open on the evidence before it.

The application is dismissed with costs.

I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Connor

Associate:

Dated:             27 November 1998

Representative for the Applicant:	M Georges
Counsel for the Respondent:	P S Braham
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	24 November 1998
Date of Judgment:	27 November 1998